The appellant was the defendant in an action brought against him by the respondents (then plaintiffs) in respect of premises situate at 41 Akpakpava Street, Benin City. The respondents claimed that the property was rightly acquired by their several fathers who were brothers of the full blood sometimes in 1919 by grant from one Obazuaye on his marriage to one Madam Obazuaya, a sister of the full blood of their fathers. Their case was that their fathers contributed money and built the premises. On the completion of the building they moved in and settled there. Thomas Omorodion, the first respondent, claimed that his father, one of the three brothers, lived in part of the house until his death in 1957 whereon on his performance of the funeral ceremony in the house in 1959 in accordance with Benin Native Law and Custom he, as his father’s eldest son, inherited the portion occupied by his father and was in possession until the appellant entered that portion and converted it into rooms and shops which he let out to tenants. Sometime in July 1980 the matter was reported to the Oba of Benin who ruled that the house belonged to the three deceased brothers. The appellant did not heed the ruling, whereon the 1st respondent instituted an action, suit No. B/233/80, against him in the High Court. Judgment was entered for the 1st respondent for damages for trespass. The judgment was confirmed by the Court of Appeal in appeal No. CA/B/22/85 on 26th September, 1985.

The 2nd respondent, Peter A. B. Ezelasogie, for his part claimed that his father, of whom he was the eldest surviving son, lived in the house as co-owner from 1921 until his death in 1945. Forty years later, in 1985, he too performed the funeral ceremonies that qualified him to inherit his father’s portion. The appellant’s (Sunday Obasohan’s) case, in a nutshell is that his deceased father solely acquired the premises and built there. He claimed that his father only allowed the respondent’s fathers to live by virtue of their being his brothers. He denied that respondents were entitled to inherit any portion of the premises.

It is common ground that the respective fathers of the parties were three brothers of the full blood and that those three brothers were all dead. On a dispute having arisen as to the interest of the respondents in the premises the respondents initiated the action which gave rise to this appeal claiming, (1) a declaration that prior to the Land Use Act, 1978 they and the appellant having succeeded their respective fathers in accordance with Benin Native Law and Custom were joint owners of the premises, (2) a declaration that they were each entitled to a grant of statutory right of occupancy to their respective portions of the premises, (3) partitioning of the premises, (4) accounts, (5) damages for trespass, and, (6) injunction. It is evident that from the terms of the judgment of the trial High Court the learned judge did not grant all these reliefs and that some of the reliefs he granted were in modified terms.

The trial judge being satisfied that the respondents have established their entitlement to the premises and the appellant had prevented them from entering their portion of the premises, gave judgment in terms which earlier have been set out in this judgment. He entered judgment for the respondents after considering the evidence adduced by the parties including the previous judgment in suit B/233/80.

Appellant appealed to the Court of Appeal which dismissed the appeal.

Aggrieved the appellant appealed to the Supreme Court.